Sanders v. Mt. Sinai Hosp.

Decision Date18 March 1985
Docket NumberNo. 47898,47898
Citation21 OBR 292,21 Ohio App.3d 249,487 N.E.2d 588
Parties, 21 O.B.R. 292 SANDERS et al., Appellees and Cross-Appellants, v. MT. SINAI HOSPITAL et al., Appellants and Cross-Appellees.
CourtOhio Court of Appeals

Syllabus by the Court

1. A trial court may grant a new trial when it finds that it committed an error of law during the trial. Civ.R. 59(A)(9). However, the trial court does not exercise discretion in making such a ruling. Consequently, the appellate court will reverse the new trial order when the challenged action was not error or was not prejudicial.

2. When a trial court's decision on a new trial motion involves questions of fact, a reviewing court should view the evidence favorably to the trial court's action rather than to the jury's verdict.

3. A hospital may be liable for its own negligence in loaning a servant to assist in a patient's surgery when the servant was inadequately qualified for the duties that she performed.

4. In Ohio, a minor child cannot maintain a cause of action for loss of parental consortium.

Don C. Iler, Cleveland, for appellees and cross-appellants.

Robert C. Maynard, Cleveland, for appellants and cross-appellees.

MARKUS, Presiding Judge.

Plaintiffs are a hospital patient, her husband, and her daughter. They seek damages for the patient's injuries, which they claim the defendant hospital and the defendant anesthesia assistant negligently caused during her surgery. The jury rendered verdicts for both defendants, and specifically found in an interrogatory answer that the anesthesia assistant was not negligent. The trial court granted plaintiffs' motion for a new trial because the court concluded (a) it erroneously excluded important evidence, and (b) the jury's verdict was against the weight of the evidence.

Defendants appeal, claiming that the trial court (a) erred and abused its discretion by granting a new trial, (b) gave improper jury instructions in the preceding trial, (c) wrongly suggested that plaintiffs may premise defendants' liability at the new trial on nuisance or failure to obtain informed consent, and (d) erroneously refused to grant defendants' motions for summary judgment and for a directed verdict because the anesthesia assistant was the borrowed servant of a nonparty doctor. The plaintiff daughter cross-appeals, complaining that the court improperly dismissed her claim for the loss of her mother's consortium.

The trial court did not abuse its discretion by granting plaintiffs a new trial based on that court's view of the weight of the evidence. The remaining assignments of error merit no action by this court at this time, so we affirm the new trial order without further instructions.

I

The patient entered the defendant hospital on her gynecologist's recommendation for a diagnostic laparoscopy to investigate the source of her pelvic pain. The gynecologist scheduled her surgery for the morning of July 5, 1979.

In the evening of July 4, a physician anesthesiologist visited the patient in her hospital room to perform a preanesthesia evaluation. The anesthesiologist was a member of an independent group of physicians who provided all anesthesiology services at the defendant hospital. Plaintiffs had settled their claims against that anesthesiology group for the patient's injuries before the trial against the present defendants.

On July 4, the anesthesiologist found the patient to be a general anesthesia "risk 2," since she was in good health but slightly obese. Apparently, a perfectly normal, healthy individual is usually rated as "risk 1." The patient agreed to have a general anesthetic for her surgery.

The patient arrived in the operating room at approximately 8:10 a.m. on July 5. The nursing staff had sedated her prior to her arrival there. Another physician from the anesthesiologist group was present to supervise the patient's anesthesia that day. The hospital assigned two of its employees to assist the anesthesiologist: (a) a specially trained "anesthesiologist's assistant" who was not a physician or a nurse, and (b) a dental resident who began her hospital residency three days earlier and had never previously participated in surgery or anesthesia. The hospital intended the dental resident to observe and learn about anesthesia.

The physician anesthesiologist had prepared an anesthesia plan for this patient, including the type and amount of medication and anesthesia. He testified that he began inducing anesthesia for the patient at approximately 8:15 a.m. Once the patient was asleep, the anesthesiologist administered a muscle relaxant that paralyzed her voluntary muscles and her diaphragm. After that drug took effect, the patient could not breath without assistance.

The assistant attempted to visualize the patient's vocal chords so she could insert an endotracheal tube. When she could not do so, the anesthesiologist inserted the tube and then listened to the patient's lungs. In that manner, the anesthesiologist made sure that the tube was correctly positioned and that oxygen and anesthesia were reaching both lungs. The anesthesia chart indicates that he successfully intubated the patient by 8:20 a.m.

Although the anesthesiologist did not physically leave the operating room, the assistant monitored the patient's vital signs from 8:20 until approximately 8:45. Monitoring duties included (1) constantly listening with a stethoscope placed near the patient's trachea for the sound of gases being inhaled and exhaled through the endotracheal tube, (2) observing the patient's pulse rate by watching and listening to an electrocardiograph machine, (3) measuring the patient's blood pressure every five minutes, (4) manually ventilating the patient's lungs approximately once every five seconds by squeezing a rubber bag attached to the endotracheal tube, and (5) suctioning mucuous or other obstructions from the endotracheal tube whenever necessary.

The assistant's duties also called for her to mark the patient's pulse and blood pressure on the anesthesia chart at five minute intervals. At 8:15 a.m., the chart shows the patient's pulse was 65 and her blood pressure was approximately 106/65. The chart contains no notation about the patient's pulse or blood pressure between 8:15 and 8:30. At 8:30, the patient's pulse had risen slightly to 90, and her blood pressure was 110/90.

At approximately 8:30, the gynecologist requested that the operating room staff adjust the surgical table to put the patient in a thirty degree Trendelenburg position. They tilted the operating table to a thirty degree angle with the patient's head downward. The gynecologist then pumped three liters of carbon dioxide through a small incision into the patient's abdomen. By expanding the abdomen he could better view the patient's internal organs. At his direction, the staff turned off the overhead lights, so the lighted scope he inserted through the incision would illuminate the area more effectively. Two "saucer" lights remained on, and one of those lights illuminated the anesthesia monitoring machinery.

At 8:35, the chart shows the patient's blood pressure was 100/65, but it contains no record of her pulse then. The chart provides no further record of the patient's pulse or her blood pressure until 8:45, when her pulse reached 180 and her blood pressure was 210/90.

The anesthesia assistant testified that the patient's pulse and blood pressure were stable and within normal limits at 8:35 when she suctioned the endotracheal tube. She demonstrated for the dental assistant how she ventilated the patient by squeezing the bag, then she let the resident do it. The resident squeezed the bag two or three times and reported that the bag seemed hard to squeeze. The assistant said she took the bag from the resident and noticed its increased resistance when she attempted to squeeze it. She called for assistance from the nearby anesthesiologist.

The anesthesiologist testified that the assistant called him over at approximately 8:45. He noticed increased resistance when he squeezed the ventilating bag. He suctioned the endotracheal tube. The bag did not return to normal compliancy, so he removed the tube and ventilated the patient by using a mask with one hundred percent oxygen. The anesthesia record indicates that the patient's blood pressure was 190/90 at 8:47 or 8:48 and 180/100 at 8:50. By 8:55, the blood pressure had returned to normal limits at 120/70. The anesthesiologist reinserted the endotracheal tube at approximately 8:55. The anesthesiologist, the assistant, and the dental resident all testified that the remainder of the surgery was uneventful and ended at 10:15 a.m.

The hospital staff moved the patient to the recovery room after her surgery. Although she could breath on her own, she did not awaken from the anesthesia in the usual time. The anesthesia assistant told a surgical nurse that the patient's difficulties came from a problem with the endotracheal tube or the airway for an uncertain interval. The anesthesiologist consulted with the hospital's chief of neurology who later diagnosed the patient's condition as delayed hypoxic encephalopathy, or brain damage from oxygen starvation.

The hospital discharged the patient to a nursing home six months later on January 10, 1980. At the time of her discharge, the patient was almost totally blind. Her speech and hearing were significantly impaired. She could not move or stand without assistance. The neurologist diagnosed her condition as permanent.

Plaintiffs and defendants each presented a board certified anesthesiologist from another city to support their respective positions. Plaintiffs' expert attributed the patient's brain damage to blockage, dislodgment or malpositioning of the endotracheal tube. According to plaintiffs' expert, the anesthesia assistant failed to monitor the patient's breathing properly, so the patient lacked oxygen for ten to fifteen minutes. He said that an...

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